It can include: 1) Written or verbal insults including yelling,
name-calling, jokes and innuendo which demean, ridicule or offend;
2) Sabotaging someone else’s work; 3) Workplace supervision
done in a demeaning or abusive manner; 4) Offensive or intimi-dating
e-mails, texts, phone calls or social media communications;
5) Making false allegations; 6) Staring, glaring and inappropriate
gestures or unwelcome physical closeness; 7) Offering a benefit in
exchange for a sexual favour; 8) Sexual advances or demands that
the recipient does not welcome or want; 9) Distributing sexually
explicit email messages or attachments (i.e. pictures and videos);
and 10) Physical contact of a sexual nature such as touching or
caressing, among numerous other forms of conduct.
However, not all offensive, disrespectful or inappropriate
behaviour is harassment. Harassment does not include: 1) DIF-FERENCES
of opinion; 2) GENERALLY rude or thoughtless
comments or behaviour; 3) UNPROFESSIONAL conduct; or
4) WORKPLACE conflict. Further, and perhaps most impor-tantly,
the OHSA specifically makes clear that a reasonable action
taken by an employer or supervisor to the management and direc-tion
of workers or the workplace is not workplace harassment.
Who can be liable for workplace harassment or sexual harass-ment?
It certainly is the person engaging in the conduct, but the
employer can also be liable where it is aware of, condones or takes no
steps to stop the harassment and thus has failed in its duty to pro-vide
a harassment-free workplace as it is required to by the OHSA.
An employer is obligated under OHSA section 32.0.7 to pro-tect
a worker from workplace harassment and must investigate
incidents or complaints of workplace harassment. The obligation
of the employer to investigate is triggered when they become aware
of any incident or complaint of workplace harassment – even if
no formal complaint is filed. The employer is required, no matter
the severity of the complaint or incident, to conduct an impartial,
timely, fair and thorough investigation into the matter.
Utilizing a trained third-party investigator is essential as it dem-onstrates
to the complainant – as well as the rest of the employees
– that the employer takes the issue seriously. It further provides
the employer with the comfort that the investigation being under-taken
will be conducted appropriately, impartially and without
bias. Additionally, in the event of litigation, the third-party inves-tigative
report will provide the employer with the basis to support
its position regarding any action they took. Perhaps most salient
for the employer, it demonstrates that the employer adhered to
their legal obligations to conduct an appropriate investigation and
thus eliminates, or at the very least limits, its exposure. n
Peter V. Matukas is an experienced employment lawyer and a
credentialed workplace investigator by the Association of Workplace
Investigators practicing in Ontario and leads the workplace
investigations group at Harris + Harris LLP.
THE EMPLOYER IS
REQUIRED, NO MATTER
THE SEVERITY OF
THE COMPLAINT OR
INCIDENT, TO CONDUCT
AN IMPARTIAL, TIMELY,
FAIR AND THOROUGH
INVESTIGATION INTO
THE MATTER.
Andriy Popov/123rf.com
conflict resolution
30 ❚ DECEMBER 2018 ❚ HR PROFESSIONAL
/123rf.com